On 18th January 2017 entered into force the UE Regulation n. 655/2014, which sets a new European uniform proceeding which allows to get a preventive attachment order in cross-border cases with regards to bank accounts, in order to facilitate commercial and civil cross-border debt collection.

It is a typical provisional measure, which is aimed to prevent the debtor from transferring or withdrawing the funds held in a Member State bank account, in order to avoid the compromising of the recovery chances in the next dispossession stage.

The aim is to reduce the difficulties in debt collection, which are due to the fragmentation of the enforcement rules in each Member State. The order is issued in a Member State and will be immediately and directly recognized in another Member State, without any special enforceability declaration.

The Regulation is enforceable only in cross-border cases, when the bank account is in a different Member State from the one in which it is located the authority where the preventive attachment is requested, or in which the creditor is resident.

This measure cannot be used when are involved fiscal, customs or administrative issues and with regards to the credit arising from State’s liability for acts and omissions in the exercise of public authority. Further foreclosure cases are listed, e.g. the ones related to property rights arising out of matrimonial relationship, the cases related to wills and succession, or to credits due from debtors subjected to insolvency proceedings or credits subjected to an arbitration proceeding.

The Regulation provides two different kinds of preventive attachment: the former is available before or during a proceedings aimed to obtaining a judgment that orders the payment of a certain amount of money, when a debtor’s properties loss is feared; the latter is available when the debtor has obtained in a Member State a judicial decision or transaction, or a deed which order the payment, in other words, an enforceable order.

The application shall be submitted (even without a lawyer’s assistance) through a standard model, with the supporting documentation and the specific statements of a range of information: both the ordinary ones (as the parties, the requested authority, etc.) and the specific ones necessary to identify the accounts which have to be submitted to preventive attachment, or alternatively, a declaration indicating that it is made a “bank account information request”.

If the creditor has already a deed and believes the debtor has a bank account in a different Member State, the Regulation provides the possibility, even though the details not known, to request to the Court where the application is submitted to order the gathering of the debtor’s bank accounts information.

The procedure is written and it does not provide debate: the application is not served to the debtor and he is not heard after the issue of the order.

The preventive attachment request may be granted only if: a) it is proved the real risk that in the next stage the following recovery chances will be compromised or will be more difficult (pericululm in mora); b) there are sufficient evidences to demonstrate that the request will probably be admitted (fumus boni iuris).

The Court decides within ten working days, using a standard model too.

When the request is not grounded on a deed, the Court requires to the creditor to provide a guarantee, whose amount shall be sufficient to pay the compensation for the damages eventually suffered by the debtor if the proceeding is abused. When the request is based on a deed, the Court is able to require a guarantee too. However, if the proceedings is abused, it is without any prejudice the creditor’s responsibility for the damages caused to the debtor by him.