Cross-border recovery of maintenance taking account of the new European Account Preservation Order (EAPO)
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Cross-border recovery of maintenance taking account of the new European Account Preservation Order (EAPO) Mirela Župan1
Published online: 21 August 2015 © ERA 2015
Abstract The EAPO is a separate and standalone Europe-wide order which provides a maintenance creditor with the opportunity to apply without notice and to prevent transfer or withdrawal of funds held by a maintenance debtor in a bank account held in any other Member State (except in Denmark and the UK). The preservation order application procedure is in principle an ex parte written procedure based on information and evidence provided by the creditor. A significant degree of discretion is left to the court when assessing the pericolo in moro element. Despite the at first glance weak position of a debtor, he is provided sufficient legal remedies to challenge the Order. The author here identifies several weaknesses of the EAPO, but in general finds it to be a welcome tool to enforce maintenance debt throughout the EU. Keywords Maintenance obligations · Preservation order · Protective measure · Freezing bank accounts
1 International and European endeavours to ensure cross-border maintenance debt recovery Great concern regarding cross-border maintenance recovery has been shown both by the international community as well as by regional organisations over the past cenThis article is based on a presentation given at the Annual Conference on European Family Law, organised by ERA and held on 25–26 September 2014.
B M. Župan, PhD, LLM, Associate Professor at Chair for Private International Law [email protected]
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Faculty of Law, J.J. Strossmayer University of Osijek, Osijek, Croatia
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M. Župan
tury, and particularly over the past few decades.1 The first international conventions to that end were adopted by the United Nations2 and the Hague Conference on Private International Law.3 Numerous bilateral treaties have been signed worldwide. In the late sixties the European Community launched a Convention that, among other things, also dealt with maintenance obligations.4 Despite these endeavours, efficient cross-border maintenance debt recovery was still lacking for numerous reasons. Most of all the problem lay in the limited scope of application of these instruments; the low number of signatories; ineffective surveillance (indeed, no monitoring); methods applied related to the establishment of transmitting and receiving bodies; indirect jurisdictional rules, and in general the simplified recognition and enforcement rules which worked only among signatories on the bases of reciprocity. At the beginning of the 21st century, the European Union started more intensive legislative activity in the field of civil justice. Justice, freedom and the security of European citizens can be served only in secure and predictable legal milieu. This simple truth has been used by European legislators as a ground, or sometimes as an excuse, to engage in legislative activity and issue EC acquis in the sphere of the European Area of Civil Justice.5 One may undoubtedly argue that th
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