Louis des Cars, Philippe de Saint-Bauzel, and Jean-Guy de Ruffray, whose terms have been renewed, are joined by Fabien Pouchot.

In addition, Frédéric Manin joins ADVANT’s Steering Group, where he will contribute to the firm’s international reach alongside Jean-Nicolas Soret and Gilles Gaillard.

Founded in 2009, ADVANT Altana has established itself over the past fifteen years as one of the leading independent law firms in Paris, with nearly 100 attorneys, including 28 partners. As a founding member of ADVANT alongside ADVANT Beiten (Germany) and ADVANT Nctm (Italy), the firm offers integrated services across all areas of business law and maintains an international presence through the ADVANT network, which comprises more than 750 professionals across 15 offices.

The renewal of these two bodies reflects the firm’s strength and cohesion and is part of the growth momentum initiated in recent years: team expansion, the rise of ADVANT, the creation of an Advisory Board, and the continuous strengthening of sector-specific expertise.

The Executive Committee would like to acknowledge the commitment of all the firm’s teams, whose professionalism and daily dedication fuel the firm’s growth and reputation. This wealth of human talent—where emerging talents and seasoned practitioners, as well as French and international cultures, come together—forms the foundation upon which ADVANT Altana is building its future.

Paul Boutron is a graduate of the Grande Ecole programme at ESCP Business School and also holds a Master 2 degree in business law and taxation (University of Paris I).

After initially working at Hogan Lovells, he joined ADVANT Altana in 2016 before being appointed counsel in 2022.

• the role and jurisdiction of TAE,
• the practical consequences for current and future proceedings,
• the financial impact for companies, particularly through the contribution to economic justice.

This experiment is profoundly transforming the landscape of economic litigation and directly impacting the actions initiated by our clients.

Camille Manguer and Paul Boutron explain the practical implications for your litigation here.

"The swift and efficient recovery of outstanding debts over which no legal controversy exists is of paramount importance for economic operators in the European Union, as late payments constitute a major reason for insolvency threatening the survival of businesses, particularly small and medium-sized enterprises, and resulting in numerous job losses[1]."

This observation, made nearly twenty years ago, prompted the European legislator to provide creditors of the Member States with instruments to facilitate the recovery within the European Union of uncontested pecuniary claims that are due and payable.

From this concern emerged Regulation (EC) No 1896/2006 of 12 December 2006 creating a European order for payment procedure (the "EPO Regulation"), which entered into force on 12 December 2008, establishing a simplified, uniform, and swift procedure enabling creditors to recover their claims throughout the EU[2], while ensuring reduced processing times and lower costs associated with cross-border procedures.

Like the European Account Preservation Order (EAPO)[3], the European Order for Payment (EPO) aims to establish a harmonized procedural framework for cross-border debt recovery.

The purpose of the EPO Regulation[4] is twofold, as it aims to:

• On the one hand, simplify, speed up, and reduce the costs of litigation in cross-border cases concerning uncontested pecuniary claims by establishing a European order for payment procedure; and

• On the other hand, permit the free circulation of European orders for payment throughout all Member States by laying down minimum standards, compliance with which renders unnecessary any intermediate proceedings in the Member State of enforcement prior to recognition and enforcement.

The purpose of this article is to present the legal framework and regime of the EPO, which, after almost 20 years, remains a relatively unknown and underused cross-border debt recovery instrument, available to European creditors.

Scope and Application

The EPO applies in civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal.

However, the Regulation excludes certain areas such as revenue, customs, or administrative matters, liability of the State for acts and omissions in the exercise of State authority, matrimonial property regimes, bankruptcy, social security, or claims arising from non-contractual obligations, unless they have been the subject of an agreement between the parties or an admission of debt or they relate to liquidated debts arising from the joint ownership of property[5].

The Regulation applies only in the context of a "cross-border case", defined as one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised of the EPO application[6].

The EPO is designed as an additional and optional means for the creditor, who remains free to use any other procedure to obtain an equivalent measure under national law[7].

Jurisdiction

Jurisdiction to issue an EPO is determined by Article 6 of the Regulation, which establishes the principle that jurisdiction is determined in accordance with the relevant rules of Community law, in particular Regulation (EU) No 1215/2012 (Brussels I bis Regulation).

By way of exception, if the defendant is a consumer, jurisdiction lies solely with the courts of the Member State where the defendant is domiciled[8].

In parallel, it is up to each State to determine which court has jurisdiction within its territory.

Claims Eligible for an EPO

To be eligible for an EPO, a claim must be both:

• Pecuniary, liquidated, and due at the date on which the application for the order is lodged: in other words, the Regulation does not apply to obligations to act or refrain from acting; and

• Uncontested by the debtor.

It should be noted, however, that the Regulation does not set a ceiling on the amount of the claim that may be the subject of an EPO, which may therefore be substantial.

Procedure

The application for an EPO is lodged by the creditor with the competent court by means of a unilateral and non-adversarial application (ex parte), using a standard form (set out in the Annex to the Regulation)[9].

Content of the Application

The application must contain a number of elements to precisely identify the claim and enable the defendant, if necessary, to oppose it. The following must therefore be specified[10]:

a) The names and addresses of the parties, and where applicable their representatives, as well as the court to which the application is made;

b) The amount of the claim, including the principal and, where applicable, interest, contractual penalties, and costs;

c) If interest on the claim is claimed, the interest rate and the period of time for which that interest is claimed, unless statutory interest is automatically added to the principal under the law of the Member State of origin;

d) The cause of the action, including a description of the circumstances invoked as the basis of the claim and, where applicable, the interest demanded;

e) A description of the evidence supporting the claim. However, the Regulation does not require the provision of the evidence of the claim itself, but only a description of that evidence.

f) The grounds for jurisdiction; and

g) The cross-border nature of the dispute.

Examination of the Application

To issue an EPO, the court examines the application "as soon as possible."[11]

The court verifies, on the basis of the information provided by the creditor in the application, that all the conditions laid down in the Regulation are met : i.e., cross-border dispute; pecuniary, liquidated, and due claim, civil or commercial; jurisdiction of the court seised, correctly completed form, etc[12].

If the aforementioned conditions are not all met, but the application is not manifestly unfounded or inadmissible either, the court may give the applicant the opportunity to rectify or complete the application, within a time limit set by the court[13].

The court may also make a proposal to amend the application if the requirements are met for only part of the claim[14]. In this case:

• If the claimant accepts the court's proposal, the EPO is issued and the procedure continues, but only for that part of the claim accepted by the claimant [15].

• On the other hand, if the claimant fails to send his reply within the time limit specified by the court or refuses the court’s proposal, the court shall reject the application for a EPO in its entirety[16].

If the conditions are met, the court issues the EPO "as soon as possible and normally within 30 days of the lodging of the application[17]" (excluding the time necessary to complete, rectify, or amend the application).

The court will, however, be required to reject the application in four cases[18]:

• If the application does not meet the required conditions.

• If the application is clearly unfounded.

• If the applicant has not responded to a request for additional information or rectification within the time limit set by the court.

• If the applicant has not responded to the court’s proposal for modification within the time limit set by the court or has rejected it.

No right of appeal lies against the decision rejecting the application[19].

However, the creditor will have the possibility to submit a new EPO application or to opt for any other procedure provided for by the law of a Member State[20].

Service of the EPO

To safeguard the rights of the defendant, the EPO must be served or notified in accordance with the national law of the Member State where service or notification is to be done.

The EPO is transmitted directly and as soon as possible between the entities of origin and the entities required, in one of the modes provided for by the Service Regulation[21], i.e., by means of a decentralized, secure, and reliable computer system.

Once in the required territory, the Regulation defines the possible methods of notification of the EPO, depending on whether it is accompanied, or not, by proof of receipt by the defendant.

Regarding the methods of service or notification with proof of receipt by the defendant[22], their use ensures that the defendant has knowledge of the document, or has refused it.

Regarding the methods of service or notification without proof of receipt by the defendant[23], to compensate for the lack of guarantee of actual receipt of the document by its addressee, the European legislator has provided an additional condition: their use is only possible if the defendant's address is certain.

In either case, service or notification may also be made to a representative of the defendant[24].

Opposition to the EPO

If the defendant disputes the debt claimed by the applicant, the defendant may lodge a statement of opposition to the EPO with the court that issued it[25], as long as the order is not yet enforceable, i.e., within a period of 30 days from its service or notification[26].

The debtor is not required to specify the reasons for the opposition; the debtor only needs to indicate that the claim is disputed[27].

The opposition is lodged using the means of communication accepted by the Member State of origin of the EPO (e.g., paper or electronic means)[28]. In France, for example, the opposition is lodged with the registry of the French court that issued the EPO, either by declaration against receipt or by registered letter[29].

The opposition has the effect of continuing the procedure before the competent courts of the Member State of origin of the EPO, in accordance with the rules of ordinary civil procedure[30].

However, if the applicant does not wish to risk incurring costs in the context of an ordinary procedure, the applicant may request, in the context of the initial EPO application, that in the event of opposition, the procedure is not automatically continued[31].

Review of the EPO

Once the 30-day period has expired without any opposition being lodged, the EPO becomes, in principle, final.

The European legislator has nevertheless provided for three exceptional cases in which the defendant, who has not been able to oppose the EPO within the prescribed period, may request a review before the competent court of the Member State of origin[32]:

• First case: if the EPO was notified without proof of its receipt by the defendant and within a period too short to enable the defendant to arrange for his defence, without any fault on his part[33].

• Second case: if the defendant was prevented from objecting to the claim by reason of force majeure or due to extraordinary circumstances, again without any fault on the defendant's part[34].

• Third case: if it is clear that the payment order was wrongly issued, having regard to the requirements set out in the Regulation or due to other exceptional circumstances[35].

In the event that the court rejects the defendant's request for review, the European order for payment remains valid and can therefore be enforced.

On the other hand, if the court considers that the review is justified, the European order for payment is null and void[36].

Enforcement

Unless the defendant opposes, the court that issued the EPO declares it enforceable "without delay[37]" after verifying the date on which the EPO was served or notified.

The court then sends the enforceable EPO to the applicant.

An EPO that has become enforceable in the Member State of origin is recognized and enforced in all other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition. In other words, the enforcement of the EPO in another Member State does not require an exequatur[38].

Under no circumstances may the EPO be reviewed as to its substance in the Member State of enforcement[39].

As a last resort, the defendant may request a refusal of enforcement of the EPO from the competent court in the Member State of enforcement in two situations:

• First situation: If the EPO is irreconcilable with an earlier decision or order previously issued in any Member State or third country, provided that the following three conditions are met: 

  1. The earlier decision or order was issued in a dispute concerning the same cause of action between the same parties, and

  2. The earlier decision or order fulfills the conditions necessary for its recognition in the Member State of enforcement, and

  3. The irreconcilability could not have been raised as an objection in the court proceedings in the Member State of origin.

• Second situation: if the defendant has already paid the claimant the amount awarded in the EPO.

Finally, the Regulation provides for the possibility of suspending or limiting the EPO in the event that the defendant has applied for a review in accordance with Article 20[40]. In this case, the defendant may request the competent court in the Member State to either:

• limit the enforcement procedure to protective measures, or

• make enforcement subject to the provision of security as determined by the court, or

• in exceptional circumstances, stay the enforcement proceedings.

An EPO which has become enforceable shall be enforced under the same conditions as an enforceable decision issued in the Member State of enforcement[41].

***

_{[1] EPO Regulation – Recital 6.}

_{[2] Except for Denmark and – prior to Brexit – the United Kingdom.}

_{[3] See B.Dors, Revisiting Cross-Border Debt Recovery Tools (Part 1): The European Account Preservation Order (EAPO): https://www.advant-altana.com/en/news/revisiting-cross-border-debt-recovery-tools-part-1-the-european-account-preservation-order}

_{[4] EPO Regulation – Article 1.}

_{[5] EPO Regulation – Article 2.}

_{[6] EPO Regulation – Article 3.}

_{[7] EPO Regulation – Recital 10.}

_{[8] EPO Regulation – Article 6 (2).}

_{[9] EPO Regulation – Article 7.}

_{[10] EPO Regulation – Article 7 (2).}

_{[11] EPO Regulation – Article 8.}

_{[12] EPO Regulation – Article 8.}

_{[13] EPO Regulation – Article 9.}

_{[14] EPO Regulation – Article 10(1).}

_{[15] EPO Regulation – Article 10(2).}

_{[16] EPO Regulation – Article 10(3).}

_{[17] EPO Regulation – Article 12(1).}

_{[18] EPO Regulation – Article 11.}

_{[19] EPO Regulation – Article 11 (2).}

_{[20] EPO Regulation – Article 11 (3).}

_{[21] Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (recast)}

_{[22] EPO Regulation – Article 13.}

_{[23] EPO Regulation – Article 14.}

_{[24] EPO Regulation – Article 15.}

_{[25] EPO Regulation – Article 16 (1).}

_{[26] EPO Regulation – Article 16 (2).}

_{[27] EPO Regulation – Article 16 (3).}

_{[28] EPO Regulation – Article 16 (4).}

_{[29] French Code of Civil Procedure – Article 1424-8.}

_{[30] EPO Regulation – Article 17.}

_{[31] EPO Regulation – Article 17.}

_{[32] EPO Regulation – Article 20.}

_{[33] EPO Regulation – Article 20 (1.a).}

_{[34] EPO Regulation – Article 20 (1.b).}

_{[35] EPO Regulation – Article 20(2).}

_{[36]EPO Regulation – Article 20(3).}

_{[37]EPO Regulation – Article 18.}

_{[38]EPO Regulation – Article 19.}

_{[39]EPO Regulation – Article 22.}

_{[40] EPO Regulation – Article 23.}

_{[41]EPO Regulation – Article 21.}

In times of geopolitical and economic uncertainty, which give rise to a constantly increasing number of cross-border disputes, it is more than ever crucial that European creditors can rely on clear, simple, and harmonized tools for recovering their claims across all Member states. 

One of these tools is the European Account Preservation Order (EAPO), which aims to facilitate the seizure of funds held in bank accounts located in the EU, thereby securing claims in civil and commercial matters. 

Despite its potential to streamline cross-border enforcement and to foster a more integrated European judicial system, the EAPO remains relatively unknown and underutilized more than a decade after its adoption. 

This article delves into the legal framework and procedural intricacies of this underrated tool, which could prove more useful to international litigators.

Background 

The EAPO was designed by the EU legislator to address the challenges posed by the fragmented nature of national procedures for obtaining protective measures, such as account preservation orders. 

Indeed, prior to its introduction, creditors faced significant hurdles in securing claims across borders, as national procedures varied widely in terms of conditions and efficiency. 

These efforts culminated in the adoption of Regulation 655/2014 on May 15, 2014 (the “EAPO Regulation”)^[1], effective since January 2017, which established a uniform procedure for the seizure of bank accounts in cross-border cases in the various member states of the European Union, except for Denmark.

Scope and Application

The EAPO applies to pecuniary claims in civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal concerned. 

The Regulation defines a "cross-border case" as one where the bank account to be preserved is maintained in a Member State different from that of the court handling the application or the creditor's domicile^[2].

However, the Regulation excludes certain areas such as rights in property arising out of a matrimonial relationship, wills and successions, insolvency proceedings, social security or arbitration^[3].

It should be noted that the EAPO is designed to be an additional and optional means for the creditor, who remains free to make use of any other procedure for obtaining an equivalent measure under national law. 

Jurisdiction

Jurisdiction to issue the EAPO is determined by Article 6 of the regulation, which distinguishes various situations: 

• If the creditor has not yet obtained a judgment, court settlement or authentic instrument, jurisdiction lies with the courts of the Member State which have jurisdiction to rule on the substance of the matter^[4]. 

• If the creditor has already obtained a judgment or court settlement, jurisdiction to issue an EAPO for the claim specified in the judgment or court settlement shall lie with the courts of the Member State in which the judgment was issued or the court settlement was approved or concluded^[5]. 

• For authentic instruments, jurisdiction lies with the courts designated by the law of the Member State where the instrument was drawn up^[6].

• If the debtor is a consumer, special protection is provided, as jurisdiction lies exclusively with the courts of the Member State where the consumer is domiciled^[7].

Conditions for issuing the EAPO

The EAPO procedure begins with the creditor lodging an ex parte application with the competent court. 

The conditions for issuing the EAPO vary, depending on whether the creditor has already obtained a judgment, court settlement or authentic instrument.

In any case, the creditor must submit sufficient evidence to satisfy the court that there is an urgent need for an EAPO, because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult^[8].

If the creditor has not yet obtained a judgment, he must also submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor^[9].

The application must include detailed information about the creditor, debtor, and the bank account(s) to be preserved, as well as evidence supporting the claim and the need for the preservation order^[10]. 

The court assesses the application based on the evidence provided and may request additional information, if necessary^[11].

Where the creditor has applied for an EAPO before initiating proceedings on the substance of the matter, he must initiate such proceedings and provide proof of such initiation to the court within 30 days of the date on which he lodged the application or within 14 days of the date of the issue of the Order, whichever date is the later^[12].

Ex Parte Procedure

To ensure the element of surprise, which is crucial for the effectiveness of the EAPO, the debtor is not notified of the application or heard prior to the issuance of the order^[13]. 

This ex parte nature of the procedure is balanced by safeguards to prevent abuse (see below), including the requirement for the creditor to provide security to compensate the debtor for any potential damage. The court has discretion in determining the amount and form of security, which may be waived in exceptional circumstances^[14].

Procedure for the obtaining of account information

The EAPO Regulation allows the creditor, in certain circumstances, to obtain the information necessary to identify the debtor's bank accounts.

Where the creditor has obtained in a Member State an enforceable judgment, and has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the EAPO is lodged to order that the information authority of the Member State of enforcement obtain the information necessary to allow the debtor’s account(s) to be identified^[15]. 

For creditors who have a title which is not enforceable yet, the conditions are stricter. They must indeed demonstrate (i) that the amount to be preserved is substantial and (ii) that there is an urgent need for the account information because there is a risk that, without such information, the subsequent enforcement of the creditor’s claim against the debtor is likely to be jeopardized and that this could consequently lead to a substantial deterioration of the creditor’s financial situation. 

This distinction ensures that the procedure is not misused for speculative purposes.

Implementation and Enforcement

Once issued, the EAPO is recognized and enforceable in all Member States without the need for a declaration of enforceability^[16]. It shall be enforced in accordance with the procedures applicable to the enforcement of equivalent national orders in the Member State of enforcement^[17].

The bank must implement the order promptly, either by blocking the preserved amount or transferring it to a dedicated account^[18]. The bank is also required to declare the extent to which funds have been preserved^[19]. Any liability of the bank for failure to comply with its obligations under this Regulation shall be governed by the law of the Member State of enforcement^[20].

Once issued, the EAPO needs to be served on the debtor, using one of the various methods of service or notification set forth at Article 28 of the Regulation, within a short timeframe (within three working days following the day of receipt of the declaration made by the bank or by the entity responsible for enforcement indicating that the amounts have been subject to an attachment).

The EAPO has the same rank (if any) as an equivalent national order in the Member State of enforcement^[21].

Remedies and Safeguards

The EAPO Regulation includes several safeguards to protect the rights of the debtor, who can challenge both the order itself and/or the enforcement of the order.

The debtor can challenge the order on various grounds, set forth in Article 33 et seq., such as: non-compliance with the conditions or requirements set out in the Regulation, failure to serve the order within the prescribed timeframe, preserved amounts exceeding the amount of the order not released in due course, claim paid in full or in part, judgment on the substance dismissing the claim, etc. 

The enforcement of the EAPO may also be challenged, in accordance with the grounds set forth in Article 34 (e.g., if the account preserved is excluded from the scope of the Regulation, or is enforcement of the judgment which the creditor was seeking to secure by means of the EAPO has been refused in the Member State of enforcement or suspended in the Member State of origin).

Additionally, the debtor can request the release of preserved funds by providing security or an alternative assurance^[22].

The Regulation also provides for the liability of the creditor for any damage caused by the EAPO due to fault, with a presumption of fault in certain cases^[23].

Where the application is directed against the order per se, it is addressed to the competent court of the Member State of origin^[24]. On the other hand, where the appeal is directed against the enforcement of the order, it is addressed to the competent court (or the competent enforcement authority, if any) of the Member State of enforcement^[25].

Although underestimated, the EAPO represents an important step towards the harmonization of cross-border debt recovery between Member States. As the EU evolves, time will tell whether this tool will ultimately live up to the high expectations placed upon it and actually play a central role in promoting a more integrated and expedient legal environment for European creditors and debtors alike.