Better enforcement of monetary claims: the attachment of bank accounts
The European Commission is launching a public consultation on how to improve the enforcement of monetary claims in Europe, particularly by means of attachment of bank accounts.
Green Paper on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts [COM(2006) 618 final - Not published in the Official Journal].
The European Commission describes in its Green Paper the problems of the current situation with regard to the enforcement of monetary claims. Its intention is to create a European system for the attachment of bank accounts. To this end, it is launching a consultation among interested parties, who have been asked to submit their comments before 31 March 2007.
Creditors faced with different national rules
At Community level, several legal instruments provide for the jurisdiction of courts, the procedure to have judgments recognised and declared enforceable, and mechanisms for cooperation of courts in civil procedures. However, execution on a court order once it has been declared enforceable remains entirely a matter of national law. Moreover, under existing Community law, it is not possible to obtain a bank attachment which can be enforced throughout the European Union. In particular, Regulation (EC) No 44/2001 ("Brussels I") does not ensure that protective remedies, such as bank attachments, obtained ex parte can be recognised and enforced in a Member State other than the one where it was issued.
There are, however, differences in the national legislations of the Member States as regards the enforcement of court orders. A creditor is confronted with different legal systems, procedural requirements and language barriers which entail additional costs and delays in the enforcement procedure.
Blocking fund movements and attaching bank accounts
Attaching a debtor's bank account(s) is a very effective way for creditors to recover the amount owed to them. Most Member States have legislation which provides for the attachment of bank accounts. Debtors can, however, transfer funds very quickly to other accounts that the creditor may not know about. The creditor is often not able to block such movements of funds as quickly and therefore loses a powerful weapon against recalcitrant debtors.
The Commission feels that problems of cross-border debt recovery are an obstacle to the free movement of payment orders within the European Union and to the proper functioning of the internal market. Late payment and non-payment are a risk for businesses and consumers alike. The Commission therefore proposes the creation of a European system for the attachment of bank accounts.
Setting up a European system for the attachment of bank accounts
A European order for the attachment of bank accounts would enable creditors to seize debts before the related funds are transferred by the debtor to other bank accounts opened within the European Union. Such an order would have protective effect only, i.e. it would only block the debtor's funds in a bank account without transferring them to the creditor.
The Commission intends either to lay down a new, self-standing European procedure which would complement measures existing under national law or to harmonise Member States' national rules on the attachment of bank accounts by means of a directive. The Commission considers that, in the latter case, additional provisions would need to be made to ensure the recognition and enforcement of an attachment order issued in one Member State throughout the European Union.
Consulting the public on the need to create a European system for the attachment of bank accounts
The Green Paper is the start of a consultation exercise among interested parties as to whether it is necessary to create a European system for the attachment of bank accounts and whether such an instrument should be limited to protective orders preventing the withdrawal and transfer of monies held in bank accounts. It also asks about the possible procedure for obtaining an attachment order and about the amount, limits and effect of such an order.
The procedure for obtaining an attachment order. The Commission asks at which stages creditors, in their pursuit of a monetary claim, should be able to apply for a attachment order under the proposed European system. There are four possible stages:
- before judicial proceedings begin;
- concurrently with the raising of the principal action;
- at any later stage during the course of judicial proceedings;
- during the period between the issue of an order in one Member State and of a declaration of enforceability of the order in the Member State where the account of the debtor is located.
The Commission also asks about the conditions for granting an order. An attachment order could be granted by a court in summary proceedings upon application by the creditor, using an application form available in all Community languages. The creditor would though first have to persuade the court that he had a justifiable claim on the merits against the debtor (fumus boni iuris). The Commission is of the opinion that an enforceable right, e.g. a court order or authentic instrument, should suffice as proof of the claim. If an enforceable right has not yet been given, creditors should supply evidence to support the claim. The creditor would then have to demonstrate urgency, such as that there exists a real risk that enforcement of the claim may be frustrated if the measure is not granted (periculum in mora). Finally, the court should be able to require the creditor to provide a guarantee or security to protect the debtor against any loss or damage were the measure to be set aside in the main proceedings.
The Commission is seeking the public's views on whether or not the debtor should be heard or notified prior to the granting of a bank attachment and on what minimum information the creditor should provide when applying for an attachment order. It also raises the issue of jurisdiction of the courts issuing the order, i.e. whether it should be the court judging the merits of the case or the court of the place where the account is held.
Amount and limits of an attachment order in the European system
Limiting the attachment to a specific amount rather than blocking the entire balance in the account(s) seized would discourage abuse and be proportionate.
The Commission asks whether or not banks should be paid for the execution of an attachment order and asks what the applicable rate might be. It also asks whether the creditor should pay the bank in advance or whether the bank should deduct the amount payable from the debtor's account.
The Green Paper raises the issue of how to handle amounts seized in several debtor accounts: should the amounts seized in each of these accounts be limited in order to prevent an attachment of double or triple the amount due?
As is already the case in certain Member States, an attachment served on the head office of a bank may attach all accounts in the local branches of the bank. The Commission considers that one way of addressing the problem could be to provide for the transfer of the amount due to a separate account and to unblock the accounts seized. Consideration will have to be given to how this system works for the account of two holders such as spouses, with different banks and across different Member States.
To protect the debtor's dignity and family life, certain sums must be exempt from execution, i.e. such funds as the debtor requires for his alimentary needs and those of his family, etc.
Effects of an attachment order
To ensure that the protective nature of attachment orders is effective, the Commission proposes that they should take effect directly throughout the European Union without any intermediary procedure, such as a declaration of enforceability.
The Commission also asks about the way in which an attachment order should be transmitted from the issuing court to the bank holding the account to be seized, the time limit which the bank should respect in order to implement an attachment, and how an attachment order should affect ongoing operations. The public is also asked whether or not banks should be obliged to inform the enforcement authority whether and to what extent an attachment has successfully secured the monies liable to be paid by the debtor to the creditor.
Debtors must have the right to contest an attachment. However, it will need to be determined whether the court having issued the bank attachment is the competent authority for this or the court of the place where the account is situated. The Commission considers that grounds for objection (e.g. payment of the debt, prescription of the claim) should be harmonised at European level. It is also necessary to specify when and by whom the debtor should be notified that an attachment has been granted and has taken effect, and whether or not the attachment should be revocable or lapse automatically if the creditor does not file the principal action within a specific time period. If the debtor has several creditors, a ranking of competing creditors could be envisaged.
Finally, the Commission is also considering the possibility of "converting" an attachment into an executory measure. The creditor may first block the debtor's account by means of an attachment order. The creditor will then obtain a ruling during the main proceedings which is enforceable in the Member State where is account is held, either by means of a declaration of enforceability pursuant to Regulation (EC) No 44/2001 or by providing a certificate issued under the rules of the new European procedures for small or uncontested claims. It will need to be considered how an attachment can in this case be transformed into an executory measure effecting the transfer of the amount seized to the creditor.